Sergio Moreno-Gallardo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2020
• Docket: 19-71818
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERGIO A. MORENO-GALLARDO, No. 19-71818

Petitioner, Agency No. A077-130-457

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Sergio A. Moreno-Gallardo, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and

cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). review for substantial evidence the agency’s factual findings. Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part

the petition for review.

We reject the Government’s contention that this court lacks jurisdiction to

review the agency’s factual findings underlying the denial of asylum and

withholding of removal. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir.

2012) (the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) does not apply when the

agency denies relief on the merits rather than in reliance on an applicant’s criminal

conviction).

Substantial evidence supports the agency’s determination that Moreno-

Gallardo failed to establish he was or would be persecuted in Mexico on account of

a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011)

(even if membership in a particular social group is established, an applicant must

still show that “persecution was or will be on account of his membership in such

group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s

“desire to be free from harassment by criminals motivated by theft or random

violence by gang members bears no nexus to a protected ground”). Thus, Moreno-

Gallardo’s asylum and withholding of removal claims fail.

Moreno-Gallardo does not challenge the agency’s determination that he is

ineligible for CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60

2 19-71818 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief

are waived). Thus, we deny the petition for review as to Moreno-Gallardo’s CAT

claim.

We lack jurisdiction to review the agency’s denial of cancellation of removal

because Moreno-Gallardo raises no colorable legal or constitutional claim. See

Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (the court’s

jurisdiction over challenges to the agency’s discretionary determination is limited

to constitutional claims or questions of law).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 19-71818